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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority on a negotiability
appeal filed by the Union under section 7105(a)(2)(D) and (E)
of the Federal Service Labor-Management Relations Statute (the
Statute).(2) The appeal concerns the
negotiability of 10 proposals concerning the implementation of
the Agency's drug testing program.(3)

Proposal 1 would require the Agency to provide briefings
for employees on the Agency's drug testing program and allow
the Union an opportunity to speak at the briefings. The
proposal is within the duty to bargain as it does not directly
interfere with management's right to assign work under section
7106(a)(2)(B) of the Statute.

The first sentence of Proposal 2 would require the Agency
to provide transportation to an off-site laboratory for drug
testing. This sentence is a negotiable procedure under the
Statute. The second sentence of Proposal 2 is not in dispute.
The third sentence of Proposal 2 would require the Agency to
provide employees with a minimum of 2 hours notice before
reporting for transportation to the off-site laboratory. The
Authority finds, with Member Talkin dissenting, that the third
sentence of the proposal is outside the duty to bargain and
does not constitute a negotiable appropriate arrangement.

Proposal 3 would allow a Union representative to be
present during the collection of a urine sample and to observe
all actions of the collection site monitor. We find the
proposal to be a negotiable procedure under section 7106(b)(2)
of the Statute.

Proposal 4 would require the Agency to use some form of
disposable thermometer to measure the temperature of specimens.
We find the proposal to be a negotiable appropriate arrangement
under section 7106(b)(3) of the Statute.

Proposal 5 would allow an employee who is unable to
provide a sufficient volume of urine on the appointed test day
to return the next day to void the necessary amount. The
proposal is outside the duty to bargain under section
7117(a)(1) of the Statute because it is inconsistent with a
Government-wide regulation.

Proposal 7 would authorize up to 4 hours of official time
for an employee to arrange for a private test after undergoing
the Agency's drug test. We find the proposal to be outside the
duty to bargain because the purpose for which official time is
sought is inconsistent with a Government-wide regulation.

Proposal 9 would allow the Union to designate an observer
to attend an inspection of a drug testing laboratory. We find
the proposal to be negotiable.

Proposals 10 and 12 are no longer in dispute. We find
that the Union's expressed intent with regard to the meaning of
these two proposals comports with the basis on which the Agency
stated that it would withdraw its allegation of
nonnegotiability.

Proposal 13, which states that documentation provided by
an employee of legitimate drug use will be presumed to be a
valid explanation of a positive test, is negotiable.

II. Proposal 1

The agency will provide briefings for all employees
identified as occupying sensitive positions at least 14 days prior to initiation of random testing. The union shall be notified of these briefings,
shall be entitled to attend, and shall be entitled to speak for up to 10 minutes at
these briefings. [Only the underlined portions are in dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that the portion of the proposal in
dispute is outside the duty to bargain because it: (1)
interferes with management's right to assign work under section
7106(a)(2)(B) of the Statute; and (2) does not constitute an
appropriate arrangement under section 7106(b)(3) of the
Statute. The Agency contends that the Authority previously has
found that proposals requiring management to provide training
to employees are outside the duty to bargain because the
assignment of training constitutes an assignment of work under
section 7106(a)(2)(B) of the Statute. The Agency argues that
the proposal here requires management to assign training duties
and responsibilities to some employees who will qualify as
"trainers" and to other employees who will serve as
"trainees." Statement of Position at 3. The Agency argues
that these training activities will occur during employees'
duty hours and that the proposal interferes with management's
right to assign work. In support, the Agency relies on
American Federation of Government Employees, AFL-CIO, Local
2354 and Department of the Air Force, HQ 90th Combat Support
Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1138
(1988) (Provision 4) (F.E. Warren) and National Federation of
Federal Employees, Local 2052 and Department of the Interior,
Bureau of Land Management, Boise District Office, 30 FLRA 797,
825 (1987) (Bureau of Land Management) (Proposal 16). The
Agency also states that the Union's reliance in its petition
for review on National Federation of Federal Employees, Local
2058 and U.S. Army Aberdeen Proving Ground Installation Support
Activity, 31 FLRA 241 (1988) (Proposal 1) (Aberdeen I),
remanded as to other matters sub nom.Department of the Army,
U.S. Army Aberdeen proving Ground, Installation Support
Activity v. FLRA, No. 88-1310 (D.C. Cir. July 18, 1988)
(Order), decision on remand, 33 FLRA 702 (1988) rev'd in part
and remanded as to other matters sub nom.Department of the
Army, U.S. Army Aberdeen Proving Ground, Installation Support
Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen II),
decision on remand, 35 FLRA 926 (1990) (Aberdeen III), is
misplaced. The Agency notes that in Aberdeen I, the Authority
dismissed the petition for review as to the particular proposal
on which the Union relies.

The Agency also contends that the portion of the proposal
in dispute does not constitute an appropriate arrangement under
section 7106(b)(3) of the Statute because the proposal
excessively interferes with management's right to assign work.
Specifically, the Agency contends that because the proposal
requires drug testing briefings at meetings of employees, it
excessively interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute "by creating a
substantial burden on management inconsistent with the purposes
of effective and efficient government operations." Statement
of Position at 5. The Agency asserts that the burden on its
right to assign work arises from the proposal's requirement
that employees would have to be trained as "trainers" while in
a duty status and that other employees would have to be
assigned "to undertake the specific training[.]" Id.
Moreover, the Agency contends that this excessive interference
with management's right to assign work would be
"disproportionate to any benefit to be derived from such oral
briefings." (footnote omitted). Id. In this regard, the
Agency asserts that the oral briefings required by the proposal
would provide essentially the same information as that
presently available in an informational booklet issued by the
Agency concerning its drug testing program. The Agency adds
that if additional information is needed by employees or the
Union, they could request such information. Finally, the
Agency contends that if it is required to bargain over this
proposal, it might incur the additional burden of assigning
training duties to some 220 employee trainers in the other 220
bargaining units representing its employees nationwide.

2. The Union

In response to the Agency's assertion that the proposal
interferes with the right to assign work, the Union asserts
that the Agency has "mischaracterized" the proposal. Union
Response at 3. The Union contends that the disputed portion of
the proposal does not require training but instead provides
"occasions for the presentation of the facts on the drug
testing program and answering questions or concerns." Id. The
Union contends the Agency's reliance on F.E. Warren and Bureau
of Land Management is misplaced, and that the Authority no
longer examines a proposal's potential impact on non-bargaining
unit employees in order to determine its negotiability, citing
American Federation of Government Employees, Local 32 and
Office of Personnel Management, 33 FLRA 335 (1988) (OPM),
petition for review denied sub nom.U.S. Office of Personnel
Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990). The Union
also contends that the proposal concerns only the Union and the
bargaining unit in this case, not the "other 219 bargaining
units" mentioned by the Agency. Union Response at 5. The
Union states that the Agency has identified only three
bargaining unit positions designated for drug testing and that
those positions are occupied by a total of seven employees.
The Union notes the amount of time available for the briefings
would be at the Agency's discretion and adds that "[a]t most
one hour would be taken up of the work year of 7 employees."
Id. at 7.

The Union also contends that "notwithstanding any
infringement on management's rights," the proposal constitutes
an appropriate arrangement for employees who are adversely
affected by the Agency's random drug testing program. Id. at
2. The Union asserts that the drug testing program "has
created a great deal of controversy and concern among
employees." Id. The Union contends that any attempt to
provide information or to address employee's concerns about the
drug testing program through "cold and faceless booklets"
merely "compounds this demeaning and demoralizing action." Id.
at 3. The Union adds that the briefings are designed to
present an opportunity for employees to express their concerns
and receive answers to their questions. The Union also notes
that it is essential for the Union to be able to speak about
regulatory and contractual protections provided to employees
facing random drug testing.

B. Analysis and Conclusions

The disputed portion of Proposal 1 requires the Agency to
provide briefings to employees occupying sensitive positions
who are subject to random drug testing, and to allow the Union
up to 10 minutes to speak at the briefings. We conclude that
the proposal does not directly interfere with the Agency's
right to assign work and is within the duty to bargain.

The proposal here is to the same effect as Proposal 2 in
American Federation of Government Employees, Local 3407 and
U.S. Department of Defense, Defense Mapping Agency,
Hydrographic-Topographic, Washington, D.C., 39 FLRA 557 (1991)
(Defense Mapping Agency), in which the Authority found
negotiable a proposal that required the agency to provide
"classes" for all unit employees for the purpose of explaining
various aspects of the agency's drug testing program. The
Authority addressed and rejected the same arguments raised by
the Agency in this case that the disputed proposal directly
interfered with the right to assign work because it required
the agency to train employees. The Authority distinguished
proposals that establish a mechanism for conveying information,
such as classes, from proposals that involve instruction
concerning employees' duties and responsibilities. The former
were held not to involve the assignment of work and to be
negotiable as long as the proposals otherwise concerned
conditions of employment and did not require the release of
protected information. The Authority found that matters
concerning an agency's drug testing program "unquestionably
concern conditions of employment." Id. at 563.

Subsequent to the decision in Defense Mapping Agency, the
Authority found two other provisions requiring an agency to
provide (1) training to union officials concerning drug testing
and related employee assistance programs and (2) briefings for
all employees regarding implementation of a drug testing
program to be negotiable because they did not directly
interfere with the agency's right to assign work. National
Treasury Employees Union and U.S. Department of the Treasury,
Internal Revenue Service, Washington, D.C., 39 FLRA 1532 (1991)
(IRS). We reach the same result here. Accordingly, and for
the reasons more fully explained in Defense Mapping Agency and
IRS, we conclude that Proposal 1 does not directly interfere
with the Agency's right to assign work. Moreover, the proposal
concerns a condition of employment and it is neither alleged
nor apparent that the proposal would require the release of
information in violation of applicable law or regulation. The
Agency's reliance on F.E. Warren and Bureau of Land Management
is misplaced. Unlike the provision in F.E. Warren, which
involved instruction to new employees on elements of their
duties, the proposal here does not require instruction to
employees concerning any facets of their duties. Additionally,
in Defense Mapping Agency, we stated that we would no longer
follow Bureau of Land Management to the extent that it
indicated that all proposals requiring agencies to conduct
sessions intended to convey information to employees would be
analyzed as training proposals. Defense Mapping Agency, 39
FLRA at 567.

Based on the foregoing, we conclude that Proposal 1 does
not directly interfere with the Agency's right to assign work.
As no other basis for finding the proposal nonnegotiable was
asserted, we conclude that Proposal 1 is within the duty to
bargain. In reaching this conclusion, we note that the Agency
made no arguments with regard to the portion of the proposal
entitling the Union up to 10 minutes to speak at the briefings.
In the absence of any such arguments, and noting the Union's
statement that the proposal was intended solely to provide the
Union with the opportunity to describe the regulatory and
contractual protections available to unit employees undergoing
drug testing, we find no basis on which to conclude that this
portion of the proposal is outside the duty to bargain.

In sum, we find that Proposal 1 is within the duty to
bargain. In view of this conclusion, we need not address
whether the proposal constitutes a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute.

III. Proposal 2

If the urine sample is to be provided off-site, the
employer must provide transportation to the site. Travel
to and from the laboratory will be on official time.
Employees will be given a minimum of two hours notice
before reporting to the bus or other mode of
transportation. [Only the underlined portions are in
dispute.]

A. Positions of the Parties

1. The Agency

The Agency asserts that the first sentence of the proposal
requires the Agency to provide a bus or other Government
vehicle to transport an employee to an off-site drug testing
laboratory. The Agency contends that the first sentence is
outside the duty to bargain under section 7106(b)(1) of the
Statute because it would preclude the Agency from establishing
any other method or means of transporting employees to an
off-site laboratory. The Agency cites Bureau of Land
Management, 30 FLRA at 831-32, to support its contention that
any proposal requiring an agency to use "a particular mode of
transportation is nonnegotiable under section 7106(b)(1)
because it precludes the agency from choosing the particular
mode of transportation . . . ." Statement of Position at 8.
The Agency also rejects the Union's explanation that the first
sentence simply means that travel to the collection site would
be at Government expense. The Agency contends that this
explanation is inconsistent with the plain meaning of the
proposal which could be interpreted as requiring the Agency to
provide specific vehicles to transport employees.

The Agency also contends that the third sentence of the
proposal, requiring a minimum of 2 hours notice to employees
before they report to vehicles for transport to an off-site
test laboratory, violates management's right to determine the
Agency's internal security practices under section 7106(a)(1)
of the Statute. The Agency asserts that the minimum notice
period required by the proposal could result in more than 2
hours notice being provided and that the proposal "invites the
use of synthetic urines, carefully warmed to normal body
temperature during the required two hour hiatus, thereby
increasing the risk of false negative results." Id. at 10.
The Agency contends that the effect of this sentence of the
proposal is to "frustrate the drug testing program's purpose of
identifying illegal drug users" and, as such, the third
sentence directly interferes with management's right to
determine its internal security practices under section
7106(a)(1). In support, the Agency relies on the Authority's
decision in Aberdeen I, 31 FLRA 241 (Proposal 1), for the
proposition that sufficient notice to employees of an impending
drug test could frustrate the purpose of the drug testing
program.

The Agency further argues that this sentence of the
proposal contravenes Part II, section .8E of an Agency
regulation entitled "Drug Free Workplace Policy and
Procedures" (the Plan) for which there is a compelling need
under sections 7117(a)(2) and 7117(b) of the Statute and
section 2424.11(a) and (c) of the Authority's Rules and
Regulations. The Agency asserts that the Plan provides for
either no advance notice or a maximum of 2 hours notice before
a scheduled test in order to avoid giving employees time to
alter their specimens. The Agency argues that for a drug test
to be effective, and to achieve the goal of identifying illegal
drug users, employees must report for testing without any
notice, or within 2 hours, as required by the Plan. The Agency
also states that its Plan implements a congressional mandate to
achieve a drug-free workplace. The Agency contends that the
legislative history of section 503 of the Supplemental
Appropriations Act of 1987, Pub. L. No. 100-71, 101 Stat. 468
(1987), codified at 5 U.S.C. § 7301 note, indicates that there
is a desire to achieve uniformity in drug testing plans. The
Agency asserts that the proposal's minimum 2 hours notice would
thwart the congressional intent "that all employees of the
various agencies . . . would follow the same drug testing
regulations in significant respects." Statement of Position at
13. The Agency argues that if it is forced to ignore its own
Plan, the purpose of the drug testing program could be
frustrated.

Finally, the Agency asserts that the proposal's notice
requirement does not constitute an appropriate arrangement
because it would excessively interfere with management's right
to determine its internal security practices under section
7106(a)(1). The Agency contends that the notice requirement is
not "concerned with adverse impacts on employees because the
areas of impact, if any, are substantially within the
employee's control." Id. at 15. Regarding any alleged adverse
impact, the Agency states that it is unlikely that management
would schedule off-site drug tests to make employees late in
arriving home but, rather, the Agency contends that even if
this should occur an employee could make the necessary phone
calls from the test site to inform "others of the possibility
of arriving home late." Id.

2. The Union

The Union contends that the Agency has misinterpreted the
first sentence of Proposal 2 as requiring "the use of
Government vehicles to transport employees to off-site
locations to provide urine samples for drug testing." Union
Response at 9. The Union states, instead, that the sentence is
intended to "include Government vehicles as well as using
privately-owned vehicles or taxis with employees being
reimbursed for mileage or taxi fare." Id. The Union also
notes the language of the third sentence of the proposal
referencing a "bus or other mode of transportation[,]" as
evidence that the proposal is not limited to providing
Government vehicles. Id. The Union also contends that the
phrase "provide travel" previously has been interpreted to mean
either the use of Government vehicles or reimbursement for
other forms of transportation and that providing either form of
transportation comports with the Authority's decision in
American Federation of Government Employees, AFL-CIO, Local
1931 and Department of the Navy, Naval Weapons Station,
Concord, California, 32 FLRA 1023, 1059-63 (1988) (Provision
33) rev'd as to other matters sub nom.Department of the Navy,
Naval Weapons Station, Concord, California v. FLRA, No. 88-7408
(9th Cir. Feb. 7, 1989). Finally, the Union contends that this
sentence does not concern the technology, method or means of
performing work because the Agency's mission is to "regulate
the use of . . . national parks" not to test "employees' urine
for drugs." Union Response at 10.

With regard to the third sentence of the proposal,
relating to 2 hours notice, the Union contends that the
Agency's assertion that the 2 hours could be used to substitute
artificial urine "is ludicrous." Id. at 12. The Union states
that the Agency's reliance on the Authority's decision in
Aberdeen I is misplaced as the Authority dismissed the proposal
relied on, and also because the proposal here is
distinguishable. The Union also contends that the third
sentence of the proposal does not contravene the Agency's drug
testing regulation. In this regard, the Union asserts that
"[s]ince the words minimum or maximum do not appear in the
[Agency's] regulation one cannot say with any finality that the
regulation precludes a minimum notice period, so long as notice
is given the same day testing is scheduled." Id. at 14.
Moreover, the Union argues that while it does not believe that
the third sentence is contrary to the Agency's regulation, to
the extent such conflict exists, there is no compelling need
for the regulation. Specifically, the Union asserts that the
Agency has not demonstrated that its regulation meets the
criteria for a finding of compelling need because the record
does not establish that allowing a 2-hour notice period is
inconsistent with an effective and efficient government, or
that there is a congressional mandate that addresses, much less
precludes, minimum notice periods prior to testing. The Union
notes, in this latter regard, that Congress was concerned that
agencies not develop plans using different criteria for
designating positions for testing or different evidentiary
standards for determining drug use.

Finally, the Union contends that the notice requirement is
an appropriate arrangement for adversely affected employees.
In support of this contention, the Union asserts that off-site
testing could: (1) disrupt work assignments; (2) cause
employees to be late in leaving work, thereby disrupting
employees' outside commitments; (3) cause employees to miss
their carpools; and (4) cause employees to incur various
expenses, such as providing for alternative transportation home
and, for those employees with children in day care facilities,
additional costs imposed by some child care providers for
picking up children late. Therefore, the Union asserts that
its notice requirement provides benefits to employees that
outweigh any negative impact on management's rights.

B. Analysis and Conclusions

1. The First Sentence Is a Negotiable Procedure

We find that the first sentence of Proposal 2 does not
directly interfere with section 7106(b)(1) of the Statute.
Rather, this sentence constitutes a negotiable procedure.

To demonstrate that a proposal directly interferes with
management's right to determine the methods and means of
performing work under section 7106(b)(1), an agency must show
that: (1) there is a direct and integral relationship between
the particular method or means the agency has chosen and the
accomplishment of the agency's mission; and (2) the proposal
would directly interfere with the mission-related purpose for
which the method or means was adopted. U.S. Department of
Health and Human Services, Social Security Administration,
Northeastern Program Service Center and American Federation of
Government Employees, National Council of Social Security
Administration Payment Center Locals, Local 1760, 36 FLRA 466,
474 (1990).

The first sentence of the proposal is concerned only with
providing transportation for employees who are required by the
Agency to travel from their regular work site to an off-site
laboratory in connection with a drug test. The Agency has not
demonstrated that a requirement to provide transportation for
employees undergoing a drug test involves a methods or means of
performing work under section 7106(b)(1) or that the manner in
which employees travel to the test site is connected with the
manner in which the Agency's mission is accomplished. Unlike
Bureau of Land Management, in which the Authority found
nonnegotiable a proposal that addressed the use of privately
owned vehicles for Government business, the proposal here is
not directly and integrally related to the nature of the
Agency's business and the accomplishment of the Agency's
mission. The proposal is merely concerned with providing
transportation for employees who are directed to undergo a drug
test. Moreover, we find that the first sentence does not
dictate the type of transportation that will be provided or
prevent the use of transportation for which employees may be
reimbursed. Nothing in either the language of the proposal or
the Union's explanation of the proposal suggests that the
Agency would be so limited.

Based on the foregoing, we conclude that the first
sentence of the proposal does not directly interfere with the
Agency's right to determine the technology, methods or means of
performing work. Rather, the first sentence constitutes a
negotiable procedure. In view of this finding, we need not
address the Union's contention that the sentence also
constitutes a negotiable appropriate arrangement.

2. The Third Sentence Directly and Excessively Interferes with Section 7106(a)(1)

We conclude that the third sentence of Proposal 2 is
nonnegotiable because it directly interferes with management's
right to determine its internal security practices under
section 7016(a)(1) of the Statute. We further find that the
third sentence does not constitute a negotiable appropriate
arrangement. (Member Talkin's dissenting opinion is set forth
at n.4, below.)

The third sentence of Proposal 2 requires that employees
be given a minimum of 2 hours notice prior to reporting for
transportation to the off-site laboratory. We find this
sentence to be to the same effect as provisions found
nonnegotiable in American Federation of Government Employees,
Local 1808 and U.S. Department of the Army, Sierra Army Depot,
Herlong, California, 37 FLRA 1439, 1440-45 (1990) (Member
Talkin dissenting, in part) (Sierra Army Depot). In Sierra
Army Depot, the Authority found that provisions requiring
employees to be given 2 hours advance notice that they would be
tested for illegal drug use directly interfered with the
Agency's right to determine its internal security practices.
The Authority found that the agency had established a link
between its drug testing program and its internal security
concerns and that the provisions would impermissibly interfere
with the agency's ability to conduct unannounced random drug
tests of employees in sensitive positions by requiring
employees to be provided with advance notice of the tests.

We reach the same conclusion here because the third
sentence of the proposal would require, at a minimum, that
employees be given 2 hours notice prior to reporting for
transportation to the test site. In our view, this sentence
creates an even greater interference with management's right
than was present in Sierra Army Depot. We note, in this
regard, that the 2 hours notice applies to reporting for
transportation, and not simply reporting to the test site. The
time spent travelling to the test site would create an
additional time lag between the notice to employees and the
time when they actually undergo the drug test. As we have
found 2 hours notice to be an impermissible interference with
management's right to determine its internal security
practices, a notice period exceeding 2 hours clearly would
constitute an impermissible interference with the exercise of
that right.

Consequently, we find that the third sentence of the
proposal directly interferes with management's right under
section 7106(a)(1) of the Statute to determine its internal
security practices. We next address whether the third sentence
constitutes a negotiable appropriate arrangement under section
7106(b)(3), as argued by the Union.

To determine whether a proposal constitutes an appropriate
arrangement, we must decide whether the proposal is intended to
be an arrangement for employees adversely affected by the
exercise of a management right, and whether the proposal is
appropriate because it does not excessively interfere with the
exercise of a management right. National Association of
Government Employees, Local R14-87 and Kansas Army National
Guard, 21 FLRA 24, 31-33 (1986).

The Union states that the third sentence of the proposal
is intended to alleviate the disruptive impact on employees
when they are called to report to an off-site laboratory for
drug testing. The Union states that, without adequate notice,
employees will have insufficient time to notify family members
and others of the need to make alternative arrangements if the
employees are unable to depart work at their normal quitting
times. By way of example, the Union notes that employees must
be able to contact their carpools or day care centers in order
to make any necessary arrangements for transportation home or
alternative day care. As so explained, we find that the third
sentence of the proposal constitutes an arrangement for
employees adversely affected by the exercise of the Agency's
right to determine its internal security practices.

However, we further find that the third sentence is not an
appropriate arrangement because it would excessively interfere
with the exercise of that management right. The Union claims
that the proposal would benefit employees by giving them
sufficient time to make telephone calls and other alternative
arrangements if it appears that employees will be unable to
depart work at their normal quitting times. The Union also
notes that employees may incur additional commuting and day
care expenses which, apparently, the Union believes would be
offset by adherence to the proposal. Obviously, there are
benefits to employees of having time in which to make necessary
scheduling adjustments. However, we find that the time
available to employees under the proposal and the benefits that
would thereby accrue to the employees do not, on balance,
outweigh the burdens imposed on the Agency's right to determine
its internal security practices. As part of its internal
security practices, the Agency has the right to engage in
random drug testing and to guard against any reduced
effectiveness on the program that might result from the
requirement of a minimum 2 hours notice. Moreover, we note
that employees would not be left without the capacity to make
necessary telephone calls and other arrangements. The Agency
states that employees will have an opportunity to make
telephone calls from the test site, and there is no evidence
that employees would be prevented from making some or all of
their arrangements at such time or prior to departing for the
test site once they are called to undergo a drug test.
Consequently, we find that the third sentence of the proposal
does not constitute a negotiable appropriate arrangement under
section 7106(b)(3) of the Statute.

In sum, we find that the third sentence of the proposal
would directly and excessively interfere with the Agency's
right to determine its internal security practices and is,
therefore, nonnegotiable.(4) In view of this result, we need
not address the Agency's additional argument regarding a
compelling need for an Agency regulation.

IV. Proposal 3

If the urine sample is to be provided on-site and
if the employee makes a request, he is entitled
to union representation during the collection of
the sample. The representative shall observe all
actions of the collection site monitor.
Employees shall receive written notice informing
them of their right to union representation.
[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that the disputed portion of
the proposal is contrary to the Mandatory Guidelines
for Federal Workplace Drug Testing issued by the
Department of Health and Human Services (HHS), 53 Fed.
Reg. 11970 (1988) (Guidelines). Specifically, the
Agency asserts that Proposal 3 contravenes Section
2.2(d) of the Guidelines, which provides that "'[n]o
unauthorized personnel shall be permitted in any part
of the designated collection site when urine specimens
are collected or stored.'" Statement of Position at
18, quoting 53 Fed. Reg. 11980. In its supplemental
submission, the Agency argues that it is not permitted
to deviate from these Guidelines. The Agency contends that as a Union representative would fall
within the meaning of the term "unauthorized
personnel," the representative would not be permitted
in any part of the designated collection site when
specimens are collected or stored.

The Agency also contends that the proposal is
nonnegotiable because it directly interferes with
management's right to determine its internal security
practices under section 7106(a)(1) of the Statute. In
this regard, the Agency asserts that the presence of a
Union representative during the collection process
"compromises the security of all specimens collected .
. ." and might "distract the collection monitor
sufficiently enough to interfere with the security of
the chain-of-custody of the specimen." Statement of
Position at 17. Thus, the Agency contends that "the
presence of a [U]nion observer could permit some
tampering with the urine." Id.

The Agency also contends that the proposal does
not constitute a negotiable procedure under section
7106(b)(2) of the Statute because it directly
interferes with management's determination of its
internal security practices. The Agency asserts that
if a Union representative is present during the
collection process and monitors the actions of the
Agency's collection site person, the Union's
representative "in effect, would be participating in
the agency's right to determine what work will be
performed and by whom in implementing its drug testing
program." Id. at 20 (emphasis in original). The
Agency explains that collection site personnel would
have to watch the unauthorized Union representative,
as well as monitor the employee providing a sample,
thereby "dictat[ing] what extra work the authorized
personnel will be required to do . . . compromising .
. . the security of all the specimens at the site."
Id. at 21.

Finally, in its supplemental submission, the
Agency argues that the collection procedure does not
constitute an examination within the meaning of
section 7114(a)(2)(B) of the Statute. Consequently,
the Agency states that there is no right to Union
representation during the collection process.

2. The Union

The Union contests the Agency's assertions that
the presence of a Union representative would result in
any tampering with specimens or otherwise compromise
the security of the collection process. The Union
states that the Agency's security concerns could be
satisfied by requiring the Union representative to
remain "in a given spot" at the collection site.
Union Response at 20. The Union further argues that
employees subjected to testing have a right to Union
representation during the collection process under
section 7114(a)(2)(B) of the Statute. In this regard,
the Union asserts that "the drug test is a procedure
for eliciting facts regarding an investigation into
the employee's use of certain illegal drugs[,]" and
that unit employees "have definite cause to believe
that this examination may result in disciplinary
action." Id. at 21.

The Union also argues that because employees have
a statutory right to representation at the collection
site under section 7114(a)(2)(B), the provisions
contained in the Guidelines "cannot nullify employees'
statutory rights." Id. at 22.

Finally, the Union contends that the proposal is
a negotiable procedure under section 7106(b)(2) of the
Statute. The Union asserts, in this regard, that this
procedure does not prevent the Agency from acting at
all and does not directly interfere with management's
rights because "drug testing would proceed the same as
if the Union representative were not there." Id. at
24, 25.

B. Analysis and Conclusions

We find that Proposal 3 is within the duty to
bargain as it constitutes a negotiable procedure under
section 7106(b)(2) of the Statute.

Proposal 3 is similar to a proposal in National
Federation of Federal Employees, Forest Service
Council and U.S. Department of Agriculture, Forest
Service, Washington, D.C., 40 FLRA 174, 180-85 (1991),
(Forest Service), petition for review filed sub nom.U.S. Department of Agriculture, Forest Service v.
FLRA, No. 91-1275 (D.C. Cir. June 10, 1991), which
provided that unit employees are entitled to have a
union representative present during the collection of
urine specimens to observe the actions of the
collection site monitor. In Forest Service, the
Authority addressed, among others, the same arguments
raised by the Agency here that the proposal (1)
violates Section 2.2(d) of the Guidelines; (2)
directly interferes with the right to determine
internal security practices under section 7106(a)(1);
and (3) does not constitute a negotiable procedure
under section 7106(b)(2) of the Statute. The
Authority rejected these arguments, finding that the
agency had discretion under the Guidelines to empower
or permit persons to be present at the collection
site, and that the presence of a union observer would
not compromise the security of the testing process.
Accordingly, the Authority found that the proposal was
a negotiable procedure under section 7106(b)(2) of the
Statute. For the reasons more fully set forth in
Forest Service, we find that Proposal 3 similarly
constitutes a negotiable procedure under section
7106(b)(2) of the Statute.

V. Proposal 4

If the urine sample is to be provided on-site,
where the temperature of each sample will be
taken, the agency agrees to use some form of
disposable thermometers, such that each sample
will be tested using a new bulb, to guard against
any possibility of tainted samples. [Only the
underlined portion is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that the portion of the
proposal in dispute is nonnegotiable because it
directly interferes with management's right to
determine its internal security practices under
section 7106(a)(1) of the Statute. The Agency argues
that the proposal is not a procedure but, rather,
establishes "substantive criteria" that directly
interfere with the "methods and equipment" it has
chosen as part of its internal security plan.
Statement of Position at 22-23. The Agency argues
that by requiring it to use some type of disposable
thermometer, the proposal would preclude the Agency
from selecting another type of thermometer or
temperature measuring equipment. Specifically, the
Agency contends that the disputed portion of the
proposal would preclude it from using an electronic
thermometer with a disposable cover, which the Agency claims would be as reliable as a disposable
thermometer but less costly.

The Agency also argues that the proposal conflicts
with Section 2.2(f)(12) of the Guidelines by mandating the
use of equipment, which differs from the standard in the
Guidelines. As explained more fully in its supplemental
submission, and relying on Aberdeen II, 890 F.2d 467, the
Agency argues that the Guidelines contain the exclusive
standards and requirements for drug testing. According to
the Agency, the Guidelines require that "the temperature
measuring device 'must accurately reflect the temperature
of the specimen and not contaminate the specimen.'"
Agency Supplemental Brief at 4. The Agency argues that the
proposal is nonnegotiable because it would require the use
of a specific type of thermometer, namely, a disposable
thermometer, that is not specified in the Guidelines.

The Agency also argues that the proposal does not
constitute a negotiable appropriate arrangement under
section 7106(b)(3) of the Statute. In this regard, the
Agency states that the proposal excessively interferes with
management's right to determine its internal security
practices by precluding the Agency from using methods or
equipment that meet the specific standards regarding the
accuracy of measuring devices contained in section
2.2(f)(12) of the Guidelines. The Agency also states that
the proposal would excessively interfere with management's
right to determine the specific equipment it will use to
assure the reliability of test samples.

The Agency also asserts that the proposal interferes
with management's right under section 7106(b)(1) of the
Statute to determine the technology of performing work.
The Agency states, in this regard, that "[t]here is no
doubt that the process of measuring the temperature of the
urine specimen is an integral part of the [A]gency's work
in administering its drug testing program . . ." and that
"[b]y restricting management's choices to a disposable
thermometer, the proposal conflicts with management's right
to determine the technology of performing work . . . ."
Statement of Position at 26.

Finally, the Agency argues that the proposal conflicts
with Part II, section .2 of the Agency's Plan, for which
there is a compelling need under sections 7117(a)(2) and
7117(b) of the Statute and Part 2424.11(c) of the
Authority's Rules and Regulations. The Agency states that
section .2 of the Plan requires the Agency to adhere to all
scientific and technical guidelines promulgated by HHS, and
that the Guidelines do not allow for any deviation, such as
would be required by Proposal 4. The Agency argues that
the requirement in the Plan to adhere to the Guidelines
implements a nondiscretionary mandate to the Agency that it
follow Government-wide regulations. The Agency also argues
that there is a need for uniformity in the application of
the Plan and that the Agency "must use the same equipment
and methods to test employees in this bargaining unit as it
uses for other employees." Statement of Position at 27.

2. The Union

The Union contends that the disputed portion of
Proposal 4 constitutes a negotiable procedure under section
7106(b)(2) of the Statute. Specifically, the Union argues
that the disputed wording is "purely procedural" and merely
requires "management to change the bulb on the thermometer
each time an employee's urine sample is tested . . . ."
Union Response at 26. The Union also states that
"[m]anagement retains the right to determine the precise
type of measuring device to use." Id. at 27.
Alternatively, the Union contends that the proposal is
negotiable as an appropriate arrangement under section
7106(b)(3). In this regard, the Union states that
"[c]hanging the bulb on the measuring device . . ." is a
small inconvenience for management while the repercussions
to an employee of having a faulty thermometer or of having
a bulb contaminating the sample are great. Id. at 27-28.
The Union also asserts that the proposal does not conflict
with the Agency's internal security determinations because
the proposal does not preclude the use of a thermometer
altogether, require that the Union approve the type of
thermometer, or require that the entire thermometer be
discarded after each use. Rather, the proposal only
requires that each sample be tested with a new bulb. The
Union also argues that the proposal does not infringe on
management's right to determine the technology, methods and
means of performing work. The Union contends that testing
employees for the use of illegal drugs is not part of the
technology of performing work and, therefore, the
"procedural safeguard regarding the use of 'some form of
disposable thermometers' when testing employees is
negotiable." Id. at 29.

Finally, the Union asserts that the proposal does not
contravene either the Guidelines or the Agency's Plan. In
this regard, the Union contends that the proposal does not
mandate a particular type of thermometer but, rather, seeks
to have the temperature of specimens measured accurately
and without contamination by reusable thermometers.
According to the Union, the proposal is in accordance with
the Guidelines, which "obviously allow management to
determine what type of thermometer to employ." Id. The
Union also argues that because the proposal does not
conflict with the Guidelines, the Agency's contention that
the proposal violates its drug testing Plan, which
contention rests entirely on the Guidelines, "cannot
withstand scrutiny." Id. at 30.

B. Analysis and Conclusions

We find that the portion of Proposal 4 in dispute is
negotiable as an appropriate arrangement for employees
adversely affected by the exercise of management's right to
determine its internal security practices under section
7106(a)(1) of the Statute. We also find that the Agency
has failed to establish that the proposal is inconsistent
with the Guidelines, that a compelling need exists for an
Agency regulation so as to bar negotiations over the
proposal, or that the proposal interferes with the
technology of performing work.

Starting with the Agency's reliance on the Guidelines,
we reject the Agency's contention that the proposal
conflicts with section 2.2(f)(12) by mandating the use of
equipment that differs from the standards set forth in the
Guidelines. Section 2.2(f)(12) of the Guidelines provides,
as relevant, that "[t]he temperature measuring device used
must accurately reflect the temperature of the specimen and
not contaminate the specimen." 53 Fed. Reg. 11981.
Nothing contained in section 2.2(f)(12) identifies the
particular type of temperature measuring device that will
be used or prohibits the use of any particular type of
thermometer, including a disposable thermometer. In the
absence of any specific requirement or prohibition set
forth in section 2.2(f)(12), we find that the use of "some
form of disposable thermometers," as required by the
proposal, is not inconsistent with section 2.2(f)(12) of
the Guidelines.

We also reject the Agency's contention that the
proposal is inconsistent with an Agency regulation for
which a compelling need exists. The Agency's assertion of
compelling need is based on the section of the Agency's
Plan that requires adherence to all guidelines promulgated
by HHS. The Agency states that the Plan thus implements a
nondiscretionary mandate that the Agency comply with
Government-wide regulations. The Agency also argues that
there is a need to achieve uniformity in the application of
the Plan, which is effected by using the same equipment and
methods to test all Agency employees. We find that the
Agency's assertion of compelling need to bar negotiations
over the proposal fails for several reasons. First, as the
Guidelines do not specify the type of temperature measuring
device that must be used or prohibit the use of some form
of disposable thermometer, the proposal would not prevent
the Agency from adhering to the Guidelines. Second, the
Agency has not cited any section of the Plan itself that
would require the use of a particular type of measuring
device to the exclusion of some form of disposable
thermometer. Finally, assuming, as the Agency argues,
that there is a need to achieve uniformity in the
application of the Plan that would be effected by using the
same type of temperature measuring equipment, nothing in
the proposal would prevent the Agency from using disposable
thermometers to measure the temperature of all specimens.
Consequently, we find that the Agency has not established
that a compelling need exists for its Plan so as to bar
negotiations over the proposal.

We find similarly unpersuasive the Agency's argument
that the proposal interferes with the Agency's right to
determine the technology of performing work under section
7106(b)(1) of the Statute. In our view, the Agency has
failed to establish that there is a technological
relationship between the type of thermometer employed and
accomplishing or furthering the performance of the Agency's
work. SeeAmerican Federation of Government Employees,
Local 3601 and U.S. Department of Health and Human
Services, Public Health Service, Indian Hospital,
Claremore, Oklahoma, 39 FLRA 504, 511 (1991) (to determine
whether a proposal interferes with management's right to
determine the technology of performing work, an agency must
establish that there is a technological relationship
between the proposal and accomplishing the agency's work,
and demonstrate how the proposal would interfere with the
purpose for which the technology is adopted). Although the
Agency argues that the process of measuring temperatures is
an integral part of the Agency's administration of its drug
testing program, we find that the Agency has failed to
establish that the method used to measure the temperature
of urine specimens is connected with the manner in which
the work of the Agency is performed.

Next, we address the Agency's argument that the
proposal is outside the duty to bargain because it directly
interferes with the Agency's right to determine its
internal security practices under section 7106(a)(1) of the
Statute. In National Federation of Federal Employees,
Local 15 and Department of the Army, U.S. Army Armament,
Munitions and Chemical Command, Rock Island, Illinois, 30
FLRA 1046, 1059 (1988), (Rock Island I), remanded as to
other matters sub nom.Department of the Army, U.S. Army
Armament, Munitions and Chemical Command, Rock Island,
Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988)
(Order), decision on remand, 33 FLRA 436 (1988), rev'd in
part and remanded as to other matters sub nom.Aberdeen II,
decision on remand, 35 FLRA 936 (1990) (Rock Island II),
the Authority held that management's determination of the
methods and equipment to be used in drug testing is an
exercise of its right to determine its internal security
practices under section 7106(a)(1) of the Statute. The
Authority also held that limitations on the range of
management's choices as to the methods and equipment used
to conduct drug tests establish substantive criteria
governing the exercise of management's right to determine
its internal security practices.

In this case, we find that Proposal 4 would establish
a substantive criterion governing the exercise of
management's right to determine its internal security
practices by requiring the Agency to use some form of
disposable thermometer. Accordingly, and for the reasons
more fully set forth in Rock Island I, we find that
Proposal 4 directly interferes with section 7106(a)(1) of
the Statute. We also find, contrary to the Union's
assertion, that the proposal does not constitute a
negotiable procedure under section 7106(b)(2) of the
Statute. The Authority has held that proposals that
directly interfere with the exercise of a management right
do not constitute negotiable procedures under section
7106(b)(2) of the Statute. See, for example, National
Association of Government Employees, Local R12-33 and U.S.
Department of the Navy, Pacific Missile Test Center, Point
Mugu, California, 40 FLRA 479, 487 (1991).

However, we find that the proposal constitutes a
negotiable appropriate arrangement under section 7106(b)(3)
of the Statute. In this regard, the Union states that the
proposal is designed to minimize the repercussions to
employees of erroneous test results that result from faulty
thermometers or bulbs that have been contaminated by
previous specimens. Based on this explanation, we find
that the proposal is intended to be an arrangement for
employees adversely affected by the exercise of
management's right to determine its internal security
practices.

We also find, on balance, that the proposal would not
excessively interfere with the exercise of management's
right to determine its internal security practices. We
find that the benefits to employees inuring under the
proposal outweigh the burdens imposed on management's
ability to select the type of equipment that will be used
to measure the temperature of the specimens. The risks
that employees could face if specimens were to be tested
with a faulty thermometer or with a thermometer that had
been contaminated by a prior specimen, and the negative
consequences that could flow from an inaccurate temperature
reading, are significant. By contrast, the burden imposed
on the Agency's right to determine its internal security
practices would be minimal. We note, in this regard, that
there has been no showing that the reliability of any drug
tests would be impaired in any way by using some form of
disposable thermometer. When the risks to employees from
faulty or contaminated equipment are weighed against the
minimal intrusion on the Agency's right to determine its
internal security practices, we conclude that the proposal
would not excessively interfere with the exercise of
management's right. Therefore, the proposal constitutes an
appropriate arrangement under section 7106(b)(3) of the
Statute. CompareRock Island I, 30 FLRA at 1060-61
(proposal held not to be appropriate arrangement as
benefits to employees did not outweigh burden on
management's choice of testing methods).

In sum, we find Proposal 4 to be a negotiable
appropriate arrangement under section 7106(b)(3) of the
Statute.

VI. Proposal 5

If a selected employee is unable to provide a
sufficient volume of urine within a reasonable
period of time on the appointed day, the employee
may return the next day to void the necessary
amount. [Only the underlined portion is in
dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that Proposal 5 is
nonnegotiable because it directly interferes with
management's right to determine its internal security
practices under section 7106(a)(1) of the Statute, and
because it is inconsistent with the Guidelines. With
respect to the first contention, the Agency notes that
an HHS publication entitled "Medical Review Officer
Manual: A Guide to Evaluating Urine Drug Analysis"
(Manual) directs that there be a firm policy against
permitting an employee who is unable to provide a
sufficient sample to return the following day to void
an additional amount to complete the sample. The
Agency notes that this policy is designed to prevent
the user of illicit drugs from purging his or her
system in the interim in order to avoid detection, and
that this policy is fully supported by the Agency.
The Agency also notes in its supplemental submission
that in Aberdeen II the court viewed the Manual as
part of the Guidelines and, therefore, as a binding
Government-wide regulation. The Agency asserts that
by permitting an employee to return the following day
to complete the sample, the proposal would frustrate
the purpose of the drug testing program, thereby
directly interfering with management's right to
determine its internal security practices.

The Agency also contends that the proposal
conflicts with section 2.2(f) of the Guidelines by, in
effect, permitting a split sample to be presented to
the Medical Review Officer (MRO) that does not fully
comport with the Guidelines.

2. The Union

The Union argues that the proposal does not
interfere with the Agency's internal security
practices. The Union argues that because an employee
is selected at random for drug testing and not because
he or she is suspected to have used illegal drugs,
there is no need for the Agency to institute
restrictive measures. The Union also argues that the
Agency's Plan, which provides for the deferral of drug
testing when an employee is on leave or on official
travel away from the test site, contradicts the
Agency's position that internal security concerns
dictate that a urine sample be provided "only on the
appointed day." Union Response at 31. (Emphasis in
original).

The Union also contends that the Agency's
argument that the proposal conflicts with a
Government-wide regulation is without merit. The
Union states that the Manual is not, as the Agency
asserts, part of the Guidelines and is not a
Government-wide regulation that would preclude
bargaining under section 7117(a)(1) of the Statute.
In any event, the Union argues, the proposal does not
conflict with the Guidelines, which require the
collection site monitor to contact an appropriate
authority if an employee is unable to produce a
sufficient specimen. The Union argues that the
proposal would provide the guidance to the collection
site monitor, which would consist of allowing the
employee to return the next day.

Finally, the Union argues that the proposal is
negotiable either as a procedure under section
7106(b)(2) or alternatively, as an appropriate
arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Proposal 5 would allow an employee to return on
the day following a drug test if he or she is unable
to provide a sufficient volume of urine within a
reasonable period of time on the test day. We find
that Proposal 5 is inconsistent with the Guidelines
and, therefore, that the proposal is nonnegotiable
under section 7117(a)(1) of the Statute.

The proposal here is to the same effect as
Provision 4 in Sierra Army Depot, 37 FLRA at 1445. In
that case, the union sought to bargain over a
provision that would allow an employee to return the
next day if a sufficient volume of urine was not
produced on the appointed test day. We found the
provision to be inconsistent with section 2.2(f) of
the Guidelines, which provide instructions to the
collection site person in the event that an employee
sent for drug testing cannot provide a sample of
sufficient size. We further found that the Guidelines
constitute Government-wide regulations within the
meaning of section 7117(a)(1) of the Statute. Because
the provision did not allow for compliance with the
Guidelines' instructions but, instead, set forth an
alternative procedure, we found the provision to be
inconsistent with the Guidelines and outside the duty
to bargain under section 7117(a)(1). We reach the
same result here. Moreover, we reject the Union's
argument that the proposal may constitute the guidance
that might otherwise be provided to the collection
site person confronted with an employee who is unable
to provide a sufficient sample. As we stated in
Sierra Army Depot, an alternative procedure to that
set forth in the Guidelines, which Proposal 5 would
constitute, is inconsistent with the Guidelines.
Consequently, Proposal 5 is outside the duty to
bargain.

Because we have found that Proposal 5 is
inconsistent with a Government-wide regulation and is
nonnegotiable under section 7117(a)(1) of the Statute,
we need not reach the additional arguments raised by
the parties. More particularly, with regard to the
Union's arguments that the proposal constitutes a
negotiable procedure or appropriate arrangement under
sections 7106(b)(2) or 7106(b)(3), those sections
apply only when an agency exercises the management
rights set out elsewhere in section 7106, and do not
apply when a proposal is inconsistent with section
7117(a)(1) of the Statute. See, for example, American
Federation of Government Employees, AFL-CIO, Local
3232 and Department of Health and Human Services,
Social Security Administration, Region II, 31 FLRA
355, 359 (1988).

VII. Proposal 7

If an employee chosen for urinalysis wishes to
arrange for private testing within 24 hours of
having provided the sample, the employee shall be
entitled to up to 4 hours of official time.
[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that the proposal is nonnegotiable
because private testing is inconsistent with the
Guidelines, is not contemplated by Executive Order 12564,
and is not a condition of employment. Therefore, the
Agency argues that there is no entitlement to official time
and the proposal is nonnegotiable under sections
7103(a)(14) and 7117(a)(1) of the Statute.

The Agency also argues that granting official time for
private testing does not constitute an appropriate
arrangement under section 7106(b)(3). The Agency asserts
that private testing is entirely under the employee's
control, is not required by the Agency, and may not be
considered before imposing discipline. Therefore, the
Agency argues that "no exercise of management rights could
possibly be involved[,]" that would qualify the proposal as
an appropriate arrangement. Statement of Position at
46-47.

2. The Union

The Union contends that the proposal is a negotiable
procedure under section 7106(b)(2) or, alternatively, is an
appropriate arrangement under 7106(b)(3) for adversely
affected employees. The Union also argues that the
proposal is in accord with the Guidelines. In that regard,
the Union states that the Guidelines are silent on the
issue of a private test sample that is not intended to be
the official sample used for testing purposes. The Union
further states that it intends that "private testing of a
second sample is to be used only to respond to any proposed
discipline." Union Response at 42-43. The Union also
asserts that drug testing is a condition of employment and
that the proposal constitutes a negotiable procedure
because it "allows an employee official time to gather
needed information that he or she can provide his or her
supervisor to refute a positive result on a drug test."
Id. at 43. Thus, the Union states that private testing is
a "procedural safeguard" for employees who are subject to
random testing. Id. The Union asserts that the grant of
official time is appropriate because the employee is only
doing what an official employee representative would do in
representing that same employee in the event of adverse
consequences of a positive test result from an official
sample.

Finally, the Union asserts that the proposal
constitutes an appropriate arrangement for employees
adversely affected by random drug testing. In this regard,
the Union contends that the proposal does not excessively
interfere with management's rights and, further, that "the
benefit to the employee who is allowed official time for
private testing of a second unofficial urine sample, far
outweighs any management inconvenience." Id. at 45.

B. Analysis and Conclusions

The disputed portion of Proposal 7 would require the
Agency to provide an employee who decides to have a second
drug test conducted by a private laboratory with up to 4
hours of official time. The Union states that official
time is justified in this instance because an employee who
undergoes a second drug test is actually gathering
information or evidence to confirm or refute the official
sample result, much like a Union representative would
gather evidence to aid in the employee's defense. The
Union contends that because a Union representative would
receive official time to gather evidence to defend an
employee, the employee, who is the only one able to defend
him or herself through taking a second drug test, should
also receive official time to do so.

Proposals that require employees to be granted
official time for union-related activities, including those
relating to drug testing, are negotiable under section
7131(d) of the Statute. SeeU.S. Department of
Transportation and Federal Aviation Administration, 40 FLRA
690, 713-16 (1991), petition for review filed sub nom.Professional Airways Systems Specialists Division, District
No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir.
June 28, 1991), in which the Authority found negotiable a
proposal requiring the agency to provide training to union
representatives concerning drug-related matters while on
official time. SeealsoIRS, 39 FLRA at 1533-36, in which
the Authority found negotiable provisions authorizing
training for union representatives and classes for
employees on official time regarding the agency's drug
testing program. Additionally, official time may be
granted for a variety of matters and parties may negotiate
under section 7131(d) for official time, as long as it is
otherwise consistent with the Statute and other applicable
laws and regulations. SeeAmerican Federation of
Government Employees, National Council of Field Labor
Locals and U.S. Department of Labor, Mine Safety and Health
Administration, Denver, Colorado, 39 FLRA 546, 553 (1991).

In this case, based on the undisputed portion of the
proposal, it is clear that the purpose for which official
time is sought is to enable employees to arrange for and
undergo a private drug test. The Union further explains,
in this regard, that the purpose of the private test would
be to provide information to the supervisor "to refute a
positive result on a drug test." Union Response at 43. As
noted, section 7131(d) of the Statute authorizes
negotiations for official time where such use is consistent
with the Statute and other applicable laws and regulations.
In our view, the intended purpose of the official time
required by the proposal, that is, to gather information to
provide to an employee's supervisor to refute a positive
drug test, is inconsistent with the Guidelines. As the
Authority stated in Rock Island II, 35 FLRA at 938, quoting
Aberdeen II, 890 F.2d at 473, "a proposal giving the
supervisor the authority to disregard the MRO's finding [of
a positive test result] would 'undercut the Guidelines'
command that agencies appoint a medical officer to make
final medical decisions.'" Because Proposal 7 would allow
for the use of official time for a purpose that is
inconsistent with the Guidelines, we find the proposal to
be outside the duty to bargain.

In view of our finding, there is no need to address
the Union's arguments relating to sections 7106(b)(2) and
(b)(3) of the Statute or the Agency's additional arguments.

VIII. Proposal 9

The union shall be given copies of all laboratory
proficiency test results. If agency officials
visit the laboratory for an inspection, the union
shall be entitled to designate an observer to
attend this inspection. [Only the underlined
portion is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that the disputed portion of
Proposal 9 is nonnegotiable because: (1) it is
inconsistent with the Guidelines; (2) it directly
interferes with management's right to determine its
internal security practices under section 7106(a)(1);
and (3) it interferes with management's right to
determine the technology, methods and means of
performing work under section 7106(b)(1) of the
Statute.

The Agency contends that by allowing Union
officials to attend inspections of drug testing
laboratories, the proposal conflicts with section 3.20
of the Guidelines, which provides that "a team of
three qualified inspectors, at least two of whom have
been trained as laboratory inspectors, shall conduct
an on-site inspection of laboratory premises."
(emphasis in original). Statement of Position at 47.
The Agency asserts that the Guidelines do not permit
Union representatives to accompany the authorized
inspection team to the laboratory and that the
presence of Union representatives would inhibit and
affect laboratory and inspection processes.

The Agency also asserts that the proposal
directly interferes with management's right to
determine its internal security practices because it
directly affects the reliability of inspections that
lead to and ensure the continuation of laboratory
certification. The Agency further argues that the
proposal infringes on its right to determine how
inspections are to be conducted, who should conduct
the inspections, and whether any other person besides
an Agency official will be part of a team inspecting
and monitoring a drug testing laboratory.
Consequently, the Agency argues that the proposal
concerns the technology, methods and means of
performing work under section 7106(b)(1), over which
the Agency has elected not to bargain. Finally, the
Agency contends that the proposal is contrary to the
Agency's drug testing Plan, for which there is a
compelling need, by virtue of the fact that the Plan
incorporates the Guidelines which do not allow Union
representatives at laboratory inspections.

2. The Union

The Union contends that the Agency mistakenly
argues that the proposal is contrary to the Guidelines
because the Agency has confused the prefatory comments
to the Guidelines with the Guidelines themselves. The
Union contends that the prefatory comments are not
contained in the Guidelines, do not constitute a
Government-wide regulation and, further, that the
Guidelines do not "preclude someone's accompanying the
inspection as an observer." Union Response at 47.

The Union also argues that the Agency has offered
no support for its assertion that the proposal
violates management's right to determine its internal
security practices and that the assertion is without
foundation and constitutes "mere speculation[.]" Id.
Moreover, the Union argues that the proposal's wording
cannot interfere with the Agency's right to determine
the technology, methods and means of performing its
work because this right only applies to
mission-related determinations and the Agency's
mission "does not include testing employees' urine for
drugs." Id. Finally, the Union asserts that the
Agency has not cited a specific section of its Plan
with which the proposal is alleged to be in conflict.
The Union argues that because the proposal does not
violate the Guidelines, the proposal cannot be found
to violate the portion of the Agency's Plan which
incorporates the Guidelines by reference.

B. Analysis and Conclusions

We find that the disputed portion of Proposal 9,
authorizing a union observer on inspection tours of
drug testing laboratories, is consistent with the
Guidelines. We also conclude that the proposal does
not interfere with management's rights to determine
its internal security practices or the technology,
methods and means of performing work under section
7106(b)(1). Therefore, the proposal is negotiable.

Proposal 9 is to the same effect as Proposal 2 in
Forest Service, 40 FLRA at 175, which entitled the
union in that case to designate an observer to attend
laboratory inspections whenever agency officials
visited the laboratory for that purpose. After
examining the pertinent provisions of the Guidelines,
we found that the Guidelines neither establish a right
for agency officials or union representatives to
participate in inspections incident to the
certification of laboratories nor preclude agency
officials or union representatives from participating
in those inspections. We further found that the
Guidelines would not prevent agencies from reaching an
agreement with a laboratory to permit agency
attendance at inspections or to conduct other types of
inspections that are in accordance with the
Guidelines. To the extent that the proposal would
allow a union observer to accompany agency officials,
should the agency and the laboratory agree that agency
officials would participate in on-site inspections, we
found that the proposal was not inconsistent with
section 3.20 of the Guidelines. For the same reasons
expressed in Forest Service, we conclude that Proposal
9 is not inconsistent with the Guidelines.

We further find that Proposal 9 does not directly
interfere with management's right to determine its
internal security practices. In this regard, the
Agency has not established, and it is not otherwise
apparent to us, that the presence of a Union observer
would compromise the reliability of the inspection.
Similarly, the Agency has not established that the
proposal interferes with section 7106(b)(1) because
the proposal does not prescribe the technology,
methods or means of performing the Agency's mission.

Finally, we conclude that the Agency's compelling
need argument does not provide a basis for finding the
proposal nonnegotiable. The Agency argued that
because its Plan incorporates the Guidelines, which do
not specifically allow for Union representatives at
inspections, a compelling need exists for the Plan so
as to bar negotiations over the proposal. We have
rejected the Agency's argument that the Guidelines
prohibit Union representatives from being present at
inspections. Insofar as the Agency's assertion of
compelling need is premised on an incorrect view that
the Guidelines prohibit the presence of Union
representatives at inspections, the Agency's assertion
must be rejected. We find, therefore, that the Agency
has not established that a compelling need exists for
the Plan so as to bar negotiations over the proposal.

IX. Proposal 10

If the report is positive and the employee does not wish to challenge its findings, the employer will make
reasonable accommodations for the employee's drug abuse problem by providing him/her access to a drug treatment and rehabilitation program. If the employee chooses to participate in the program, following a reasonable period of time determined in conjunction with representatives from the treatment and rehabilitation program, another
urinalysis will be conducted. [Only the underlined portions are in dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that the disputed portions of
Proposal 10 are nonnegotiable for two reasons: (1)
the first sentence is ambiguous and could be
interpreted to mean that an employee could challenge a
positive test result "far beyond that contemplated by
Executive Order 12564, the HHS Guidelines and the
[Agency's] Plan[;]" Statement of Position at 52; and
(2) the proposal's use of the term "reasonable
accommodation" is ambiguous and could be construed in
a manner that violates management's right to
discipline under section 7106(a)(2)(A) of the Statute.

Specifically, the Agency contends that the first
disputed part of the proposal could be read to provide
unit employees with a right to challenge a positive
result in a drug test that goes far beyond merely
presenting medical evidence to the MRO or beyond the
time when discipline is imposed. The Agency asserts
that "if this phrase is intended to grant employees
additional rights to challenge a positive finding at
any time other than in a proceeding after the agency
takes disciplinary action" it would be inconsistent
with Executive Order 12564, the Guidelines, and the
Agency's drug testing Plan for which there is a
compelling need. Id. at 52-53 (Emphasis in original).
The Agency also states, however, that if the Union
intends the disputed portion of the proposal "to mean
that employees have the right to explain a positive
test finding before the [MRO] by presenting medical
evidence of a legitimate use of the illegal drug, and
the Union so states in clear language," it will
withdraw its allegation of nonnegotiability. Id. at
52.

The Agency also argues that the meaning of the
term "reasonable accommodation" in the proposal is
unclear. The Agency contends that it could be
interpreted as precluding management from imposing any
discipline if an employee who tests positive for drug
use "is considered a 'qualified handicapped person'
and entitled to 'reasonable accommodation' by reason
of the employee's drug problem within the definition
of 29 CFR § 1613.703." Id. at 53. The Agency also
contends that in Hougens v. U.S. Postal Service, 38
MSPR 135 (1988), the Merit Systems Protection Board
held that an agency had no obligation under any law to
offer an employee any "reasonable accommodation"
before it imposed discipline, and that even if an
employee was entitled to such an accommodation "some
discipline, short of removal, was nevertheless
appropriate." Statement of Position at 53-54.

Finally, the Agency asserts that because the
Union's intent is unclear, the term "reasonable
accommodation" might mean "accommodations" beyond
those required by Executive Order 12564 for employees
found to be using illegal drugs. The Agency adds,
however, that if the Union clearly states that the
proposal is not intended to preclude management from
"taking appropriate disciplinary action after a
positive test result," and that the proposal is
limited to providing access to the drug treatment and
rehabilitation program provided under the Executive
Order, then the Agency will withdraw its allegation of
nonnegotiability. Id. at 54.

2. The Union

The Union states that in a letter submitted to
the Agency subsequent to the filing of the latter's
statement of position, the Union satisfied the
Agency's objections to the proposal. The Union states
that the intent of the proposal is not to grant
employees additional rights to challenge a positive
finding at any time other than after the Agency
proposes discipline. The Union adds that the proposal
is designed to apply to situations in which an
employee chooses not to explain a positive test result
to the MRO but, instead, to use the services of an
Employee Assistance Program (EAP). The Union further
states that the proposal would not deny the Agency the
right to discipline "in accordance with law." Union
Response at 48-49. The Union asserts that any right
an employee "might have to reasonable accommodation
based on a handicapping condition under the
Rehabilitation Act or any other provisions of law or
regulation would be separate from that provided in
this proposal." Id. at 49.

B. Analysis and Conclusions

Proposal 10 requires the Agency to make
reasonable accommodations for employees who test
positive for illegal drug usage by providing access to
a drug treatment and rehabilitation program. In our
view, the Union's statements with regard to the intent
of the proposal adequately satisfy the Agency's
objections so as to warrant a finding that the
proposal is no longer in dispute. In this connection,
the Union states that the proposal is intended to
apply when an employee elects to use the services of
an EAP, and is not designed to provide employees with
additional rights to challenge a positive test result.
The Union also states that the proposal will not deny
the Agency its right to discipline in accordance with
law, which we interpret to include the Statute.
Moreover, the proposal, on its face, would not limit
the Agency's right to discipline.

Based on the foregoing, we find that Proposal 10
is no longer in dispute. Accordingly, we will dismiss
the petition for review as to this proposal. SeeAmerican Federation of Government Employees, Local
1513 and U.S. Department of the Navy, Naval Air
Station, Whidbey Island, Oak Harbor, Washington, 41
FLRA 589 (1991) (Provision 5) (union's modified
interpretation of provision, on which agency indicated
that it would approve provision, warranted finding
that provision was no longer in dispute).

X. Proposal 12

Under no circumstances shall the urinalysis test
be used as a punitive measure.

A. Positions of the Parties

1. The Agency

The Agency contends that Proposal 12 may be
interpreted as limiting the punitive measures that
management may impose if an employee tests positive
for illegal drug use. The Agency contends that if the
proposal is intended to limit the disciplinary
measures management may take as a result of an
employee's testing positive for illegal drug use, then
the proposal directly interferes with management's
right to discipline its employees under section
7106(a)(2)(A), and is inconsistent with Executive
Order 12564. On the other hand, the Agency states
that if the proposal is intended to be limited to the
process of selecting employees to be tested, then it
withdraws its allegation of nonnegotiability.

2. The Union

As with Proposal 10, the Union states that, in a
letter submitted to the Agency, the Union expressed
its intent behind the proposal that responds to the
Agency's objection. In this connection, the Union
states that the intent of the proposal is to require
the Agency to "designate positions for testing and
select employees from the pool for testing in
accordance with law, Executive Order and regulation,
and not as a retaliation or punishment." Union
Response at 51. The Union also states that it does
not intend for the proposal "to apply to disciplinary
action based on a positive test result." Id.
Finally, the Union contends that Proposal 12 is
essentially similar to proposals the Authority
previously has found to be negotiable.

B. Analysis and Conclusions

Based on the Union's statement as to the meaning
of the proposal, which is consistent with the basis on
which the Agency has indicated that it would withdraw
its allegation of nonnegotiability, we find that the
proposal is no longer in dispute. Consequently, as
with Proposal 10, we will dismiss the petition for
review as to Proposal 12.

XI. Proposal 13

Employees shall not be required to disclose the
legitimate use of a specific drug at the outset
of the program. Employees will have an
opportunity to provide documentation supporting
legitimate usage upon a positive test result.
This documentation shall be presumed to be a
valid explanation of the positive urinalysis.
[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that the last sentence of
Proposal 13 is nonnegotiable because it is
inconsistent with the Guidelines and, therefore, is
outside the duty to bargain under section 7117(a)(1)
of the Statute. Specifically, the Agency states that
the Union contends that the last sentence creates a
presumption that medical documentation submitted by an
employee to explain a positive test result is valid
and "could be rebutted by the Agency when it has a
basis for rebuttal." Statement of Position at 61.
The Agency argues that the Guidelines provide that the
MRO "must perform a completely discretionary review"
of any medical documentation that is submitted by an
employee to justify a positive test result. Id.

The Agency asserts that a presumption of validity
of medical documentation "would unduly restrict" the
MRO to a merely cursory review of such documentation
and, therefore, that the proposal contravenes section
2.7 of the Guidelines. Id. In this regard, the
Agency states that the MRO cannot merely accept an
employee's medical documentation as valid. Rather,
the MRO must exercise his or her independent medical
judgment in reviewing such evidence, which can come
from many sources, not just from documentation
provided by the employee. Finally, the Agency
contends that the Authority should reconsider its
decision in National Federation of Federal Employees,
Local 178 and U.S. Army, Aberdeen Proving Ground
Installation Support Activity, 33 FLRA 521 (1988)
(Aberdeen Proving Ground), aff'd sub nom.Aberdeen II,
in which the Authority found a similar proposal
negotiable. The Agency argues that such proposals are
contrary to section 2.7(b) of the Guidelines and,
therefore, are nonnegotiable under section 7117(a)(1)
of the Statute.

2. The Union

The Union argues that the Authority has held an
identical proposal to be negotiable in Aberdeen
Proving Ground. The Union asserts that the Authority
specifically considered the applicability of section
2.7(b) of the Guidelines in finding Proposal 4 in that
case to be negotiable. The Union contends that the
proposal in this case is consistent with the
Guidelines and "does not undermine the powers of the
[MRO]." Union Response at 53. Rather, the Union
asserts that the proposal merely provides that an
employee who tests positive "will be afforded the
dignity of having the MRO accept the employee's
documentation . . . ." Id. (footnote omitted).

B. Analysis and Conclusions

We find that Proposal 13 is consistent with the
final Guidelines and, therefore, that it is within the
duty to bargain under section 7117(a)(1) of the
Statute.

With regard to the Agency's assertion that the
last sentence of the proposal conflicts with the
Guidelines, we note that in Aberdeen II, the court
affirmed our holding in Aberdeen Proving Ground that a
proposal identical to the one in this case was
negotiable. In so doing, the court agreed with the
Authority's finding that the proposal's presumption
did not diminish the MRO's responsibilities under the
Guidelines but, rather, made "explicit the
responsibility that the MRO already bears" and "merely
ensures that [an employee's] evidence receives due
consideration." Aberdeen II, 890 F.2d at 476.
Consequently, for the reasons more fully discussed by
the Authority and the court in their respective
decisions, we conclude that the last sentence of
Proposal 13 is not contrary to the Guidelines.
Rather, the proposal is within the duty to bargain
under section 7117(a)(1) of the Statute.

XII. Order

The Agency shall, upon request, or as otherwise agreed to by the parties,
bargain on Proposal 1, the first sentence of Proposal 2 and Proposals 3, 4, 9,
and 13. (5)

The petition for review is dismissed as to the third sentence of Proposal 2
and Proposals 5, 7, 10 and 12.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. Member Talkin's dissenting opinion as to a portion of
Proposal 2 is set forth at footnote 4.

2. The Authority directed the parties to file supplemental
briefs addressing the applicability of Federal court decisions,
issued during the pendency of this case, which involved Federal
agency drug testing programs. Both the Union and the Agency
filed supplemental briefs, which we have considered.

3. In its petition, the Union sought review of 13 proposals.
The Agency indicated in its statement of position that it had
not declared Proposal 8 to be nonnegotiable. Additionally, in
its supplemental brief to the Authority, the Union withdrew
Proposals 6 and 11. We will, therefore, not rule on the
negotiability of Proposals 6, 8 and 11.

4. For the reasons more fully discussed in her dissenting
opinion in Sierra Army Depot, Member Talkin would not find the
minimum 2-hour notice requirement to be an impediment that
would either undermine the Agency's ability to conduct random drug testing of employees in sensitive
positions or frustrate the purpose of detecting
illegal drug use. Member Talkin would find nothing in
either the language of the proposal or the Union's
explanation to suggest that the "minimum" notice
requirement is to be interpreted in anything other
than a reasonable manner and, further, no indication
that the time spent travelling to the test site would
be sufficiently lengthy as to affect the reliability
of any subsequent drug tests. CompareAmerican
Federation of Government Employees, Local 3457 and
U.S. Department of the Interior, Minerals Management
Service, Southern Administrative Service Center, New
Orleans, Louisiana, 37 FLRA 1456, 1467-68 (1990)
(Member Talkin, concurring) (24-hour notice period
creates a greater likelihood that the efficacy of the
testing program might be frustrated). Additionally,
although unnecessary to her disposition, Member Talkin
would find that the stated benefits to employees of a
limited notice period prior to undergoing a drug test
outweigh the burdens imposed on the Agency.

5. In finding these proposals to be negotiable, we
make no judgment as to their merits.